DR. J. P. KULSHRESHTHA AND ORS.versusCHANCELLOR, ALLAHABAD UNIVERSITY, RAJ BHAWAN AND ORS.

             902

    A                       DR. J. P. KULSHRESHTHA AND ORS.
                                                     v.
                       CHANCELLOR, ALLAHABAD UNIVERS11'Y,
                                                                                                A.
                             RAJ BHAWAN AND ORS.
                                            April 30, 1980
    B
                  IV. R. KRISHNA IYER. A. D. KosHAL """ 0. 011NNAPPA
                                              REDDY,      JJ.]
              Ordinance 9(2) of the University of Allahabad issued under section 32(2)
           (/) of the Allahabad University Act, 1921-Whether striCt compliance regard-
          ing the qualifications etc. prescribed for appolntment of teachers is necessary-
          Wflether non-compliance vitiates the selection.

             Six posts of Readers in the English Department of the University fell vacant
          and applications were invited by advertisement. The appellants and respondent<;
      5 to 10, among others were applicants and they were all serving as lecturers
      in the U n!versity at that time. Sin Ce section 29 of the Allahabad University
      Act, 1921 stipulates that teachers of the University sh~ll be appointed by the
 D Executive Council on the recommendations of the Selection Committee. a
     Selection Committee was constituted. The selection committee has to do the
     statutory exercise of choosing the best among the applicants in conformity with
     the minimum qualifications prescribed under Ordinance 9(2) of the University.
     But the committee chose to interview the candidates who were otherwise eligi-
     ble for consideration. 13 applicants turned up for interview. Respondent 9, Dr.
     Rhattacharya and appellant Skand Gupta resented the viva voce test as unautho·
E rised and did not care to appear for the interview. However Dr. Bhattacharya.
    on being persuaded, did later turn up, was intervi'ewed and eventually included
    in the Select List. Skand Gupta did not enjoy the benefit of a second pursua-
    tion to present himself for interview, did not appear befor'e the Selection Com-
    mittee a.nd missed the bus. Respondentc; 5 to 10 were chooen and on the re-
    commendation, the Executive Council made their appointment. The appellants
    thereupon moved the Chancellor under section 42 of the Act requesting him
F to cancel the appointments of respondents 5 to 10. But by an order dated
   November 22, 1973 he upheld the selection and appointment. The appellants,
   therefore, moved the High Court under Article 226 of the Constitution and
   impugned the selection process and the appointments on various grounds. The.
   teamed single judge considered the merits of the contentions c.nd concluded that
   the selections and the consequent iappointments were bad in law except in regard
   to respondents 7 and 10 and directed the University to make fresh selection and
G fill up the vacancies. Respondents 5 to 6 and 8 and 9 went in appeal to the
   Division Bench which accepted their appeals and reversed the judgment of the
   single judge in;its entirety and hence the appeal by special Ie:ive.
            Allowing the appeal the Court,
            HEID: 1. Any Administrative or quasi-judicial body clothed with pawers
        and left unfettered by procedures is free to device its own pragmatic, flexible
H       and functiona11y viable processes of transacting business subj'ect. of course, to
        the basics of natural justice, fadr play in acCon, reasonableness in collecting dcci~
        sional materials, avoidance of arbitrariness and e~traneous considerations a.nd
                     J. P. KULSHRESHTHA        v. ALLAHABAD UNIVERSITY                    903

           otherwise keeping within the leading strings of the law. Though there is no flaw         A
           in the methodology of interviews, certainly, (:ases arise where the art of inter-
            viewing .candidates deteriorates from strategy to strategem and undetectable
            rnanipul~tion of results is achieved by remote control tactics masked as viva voce
           tests. This, if allO\\'ed is surely a s·:.ibotage of the purity or proceedings, a sub-
           terfuge wh~reby legal means to reach il!egal ends is achieved. So, it is that
            Courts insist on recording of' ma.rks at interviews and oth'er fair checks like
            guidelines for murks a.nd remarks, about candidates and the like. If the Court          B
...         is skeptioal, the record of the Selection proceedings., including the notes regard-
            ing the interviews, may have to be made available. Interviews, as such, are not
            bad but polluting it to attain illegitimate ends is bad [908 H, 909 A-CJ

                 2. Social scientists and educational avant garde may find pitfalls in our
            system of education and condemn the unscientific aspects of marks as the
  ,..
  I
            measure of merit, things as they now stand. But, however imperfect a.nd obtuse
            th'e current sYstem and however urgent the modernisation of our courses cul~
                                                                                                    c
            minating in examinations may be: the fact remains that the Court has to go
            by what is extent and cannot explore on its own or ignore the measure of merit
             adopted by universities. Judges must not rush in where even educationists fear
             to tread. So the criterion of marks and class, the Allahabad University has
             laid down is sound, although to swear religiously by class and grade may be
             exaggerated reverence ood false scales if strictly scrutinised by progressive              D
              criteria. [909, E-Gl

                 3. The prescription of a high second class in Ordinance 9 is a mandatory
             nnrumum. A glance at the relevant portion of Ordinance 9 reveals t:OOt
             wherever relaxation of qualifications is intended, the Ordina.nce specifically
             spells it out and by necessary implication, where it has not said so, the posses-
             sion of such qualification is imperative. The ordinance has a purpose when it              E
             prescribes at least a high second class for a. R'eader's post. It is obligatory.
                                                                           [909 H. 910 A, C-DJ

                 4. ''High" is the antithesis of "low" and a high second' class is, therefore, a
            contrast to a low second class. When the range of a second class marks is wide,
            of the candidate who gets that cle6S with marks within the lower half bracket
            it C&llnot be said that he gets a high second c]ass. If he manages to get 48
            marks he barely gets a second class not a high second class. An<l commonsense,              F
             which is not an enemy of Courtsense, points clearly to the meaning 1 of hi!:h
        "second class as one where the marks fall a little short of first class marks and
        1"-  be narrowly misses first class. In the context of Ordinance 9 and its purpose
             and the co!locution of words used viz. 'first class or a high second cJ.ass', the
            interpreta.tion will misfire if the Court di~regard the intent and effect of the
             adjective 1'high' and indifferently read it to mean merely the minimum marks
             needed to bring the candidate within the second class. High is high and a                  G
             sup'erior second class denotes marks somewhere near first class m·ark<;. Even
             by relaxing, diluting and liberalising the rigour clearly imported bv the rlrafts-
             man by using the expression "high second class", still it is impermissible to
             render the \Vord 'high' nugatory or make, by construction, that inten'li"e adjec-
              tive redundant. Nor did the University has all these years treat ri hinh .;;:~cond
              class to mean a mere second class and English has not lost its potrncy in he
             Allahabad University so oo to include low in high. The utmost construction                 H
              would be : Draw a line at mid·po1nt, and marks .above and below that tine will
              be high and low second' class respectiv'ely. Jn the instant case, the mid-line
      904                     SUPREME COURT REPORTS                 [1980] 3 S.C.R.

A   being 54 those who have not secured above 54 cannot claim to ha.ve obtaioed
    a higi1 second class and are ineligible. [910 D"H, 911 A, DJ

        S. It is true that the Selection Committee is an expert body. But their ex-
    pertise is not in law, but in other branches of learning and the final interpreta·    "
                                                                                          .-_
    tion of an Ordinance is a legal skill outside the academic orbit. .£911 E·F]

B       6. While there is no absolute ban, it is a rul'e of prudence that courts should
    hesitate to dislodge decisions of academic bodies. But university organs, for
    that matter any authority in our system, is bound by the rule of law and cannot
    be a. law unto itself. If the Chancellor or any oth'er authority lesser in level
    decides an academic matter or an educational question, the court keeps its hands
    off; but where a provision of law has to be read and understood, it is not fair
    to keep th'e court out. To respect an authority is not to worship it unquestion-
    ingly since the bhakti cult is inept in the critical field of law. In short. while
c   dealing with legal affairs which have an impact on academic bodies, the views         1
    of educational experts are entitl'ed to great consideration but not to exclusive
    wisdom. [911 G-H, 912 B-Dl

       The University of Mysare and Anr. v. C. D. Govinda and Anr .• [1964] 4
    SCR 515 @ 586; followed.
D       7. An, illegal act cannot be deemed to be legal by reading a legislative fune-
    tion into ian ·executive action. Were this dubious doctrine applied to gave~
    mental affairs and confusion between executive and legislative fuiictions juris-
    prudentially sanctioned, the consequences could well be disastrous to the basics
    of our democracy. Small gains in som'e case should not justify the urging of
    propositions which are subversive of our constitution. [912 E-Fl

E
          ClVIL APPELLATE            JURISDICTION           Civil    Appeal      No.
     1524 of 1977.
           Appeal by Special Leave from the Judgment an·d order dated
     21-9-1976 of the Allahabad High Court in S.A.Nos.26,66 and 37/76.
            S. P. Gupta and Pramod Swaroop for the Appellants.
F
        Yogeshwar Prasad and Mrs. Rani Chhabra for the Respondents ~.
     5and6.                                                         )
          U. R. La/it and Manoj Swarup, Miss La/it Koh.'i for the Res-
     pondent (University.)
G       "The Judgment of the Court was delivered by
        KRISHNA IYER J.-The core controversy in this appeal by special
    leave rages round the legality of the selection of Readers by the AIJaha-
    bad'University. The fortunes of the litigation, pending for seven years
    have been fluctuating from court to court. The fine line of distinction
B   between internal autonomy for educational bodies and insulation of
    their operations from judicial interference on the one hand and the co-
    nstitutional obligation of the court to examine the legality of academic
..              J.P. IWLSHRBSHTHA v. ALLAHABAD UNIVERSITY (Krishna l?er, I.) 9o5

                 actions and correct clear injustices on the other is jurisprudentially
                 real and the present appeal illustrates the demarcation between the two
                 positions. While legal shibboleths like "hand-off universities" and
 \
                 metivulous forensic invigilation of educational organs may both
                  be wrong, a balanced approach of leaving universities in their internal
                 functioning well alone to a large extent, but striking at illegalities and
                  injustices, if committed by however high an authority, educational or        B
                  other, will resolve the problem raised.by counsel before us in this
                  .appeal from a judgment of the Division Bench of the High Court.

                      Once we recognise the basic yet simple proposition that no islands
                  of insubordination to the rule of law exist in our Republic and tha~
                  discretion to disobey the 111andate of the law does not belong even to       c
                  university organs or other authoritieS, the retreat of the Court at the
                  sight of an academic body, as          has happened here, cannot be
                  approved. On the facts and features of this case such a balanced exer-
                  cis., of jurisdiction will, if We may anticipate our utltimate conclusion,
                  result in the reversal of the appellate judgment and the restoration, in
                                                                                               B
                  substantial measure, of the learned single Judge's judgment quashing
                  the selections made by the University bodies for the posts of Readers
                  in English way back in 1973.
                     A perception in pe.rspective of the facts which are brief and the law
                  which is clear, persuades us to narrate the circumstances which have
                  led a number of lecturers of the Allahabad University to fighting
                  forensic battles over the selection of some as Readers in English by the
                  selection Committee and their opportunity by the Executive Council.
                     Nearly a decade ago, six posts of Readers in the English Depart-
                 Iljent of the University fell vacant and applications were invited by
                 advertisement. The petitioners and respondents 5 to JO, among                 F
             ,others'. We~e applicants.These parties .were all s~rving as lecturers in
              . the un1venty at that lime. A select10n committee was constituted
         •       as contemplated by the statutes and ordinances framed under the
                 Allahabad University Act, 1921 (for short, hereinafter called the Act.)
                 Section 29 of the Act, stipulates that teachers of the university shall be
                 appointed by the executive council on the recommendations of the
     \          'selection committee. There are st~tutory provisions regulating the
                 functions of the selection committee section 32(2)(f) of the Act.
                 provides for the issuance of ordinances prescribing qualifications for
                 appointment of teachers. ordinance 9(2) lays down the qualifications
                 fod1lachers in the various fa,culties. We are con~erned with Ordinance        H
                  9 wMh special reference to the pre&cription of qualifications for
                  R<W!e1s and it runs thus;
                   I 9-463SCI/80
      906                   SUPREME COURT REPORTS             [1980] 3 ~.C.R.

A.          9. Tne following qu1litiations are prescribei for the appoint·
                mentofteacher> in the Faculties of Arts, Scienee, Com111arce
                 and Law
            (2) For Reaiers : (i) First or High S•cona Class M1ster's
                d>gree in the subject conc~rnei ani    go:>d academic
                 record.                         ,
B
         ~(ii) Established reputation for sound scholarship and be compe·
                tent to teach upto Master's degree and guide research.
         L(iii) A doctor's degree, or eqnivalent published work.
         (iv) At least 5 years' teaching experience of the subject con·
c              cern~d in plst-grafaate classes in a University recJgnised
               by law, or research e1'perience in a Research Institute recog·
               niSed by the University or the State, or the Central Govern.
                ment.
                Provided that the selection Comnittee may relax the quali·
                fications contained in clause (iii) for the post of Readers in
                the case of candidates whose total length of service a11 tea·
                chers in this Universty is not less than the period required
                to teach the maximum of the Lecturer's grade and who
                shall have established a reputation as teachers.
                 Provided further that 'in the case of women teacher11 of
                 this (i.e. Atlahabad University), in place of qualification
                 tNo. (IV) requiring 5 years' teaching experience in pe~t­
               , graduate classes ,a minimum of 5 years teaching experience
                 of the subject in the graduate classes in this University may
                 also be considered adequate for the post of Readers.
F         The statutory exercise of choosing the best among the applicants
     in clnformity with the minim~m qualifications is done by the selection
     co~'lllttee .which re:omn,.nh. to the .e~ecutive ~ouncil its panel. \ '
     While there is no specific legtslative prov!Slon regardmg the procedure ·'-
      to be adopted by the selection committee there is no doubt that arbi·      "
     trariness is anathema, violation of natural justice vitiates and subject
G    to this, self-created rules, flexible and pragmatic, fair and functionally
      viable, may well be fashioned by the selection committee. In this
      case the committee chose to interview the candidates who were other·
      wise eligible for consideration. 13 applicants turned up for i)lter-
       view. But respondent No, 9, Dr.            Bhattacharya,     and    peti·
      tioner No. 2, Skand Gupta, apparently resented the viva voce test
H     as unauthorised and did not care to appear for the interview. How·
      ever, Dr. Bhattacharya (R. 9), on being persuaded, !did later turn
      up, was interviewed and eventually included in the 'select list'. The
                                                                                     •
J. P. KULSHRESHTHA v. ALLAHABAD UNIVERSITY (Krishna Iyer,!.) 901

 Second petititioner did not enjoy the benefit of a second persuasion to        A
 persent himself for interview, did not appear before the Selection
 Committee and missed the bus.
     The Committee, which consisted of academic experts, prepared
 a panel and forwarded it to the Executive Council. As is inevitable in
 situations of over supply, many are called but few are chosen and              B
 Respondents 5 to 10 (Dr. Mrs. Hem Lata Joshi, R-5, Shri H. S
 Saxena, R-6 Dr. R.R. Dutt, R-7, Shri I. N. Agarwal, R-8, Dr.
 A. N. Bhattacharyya, R-9, and Dr. L. M. Upadhayaya, R-10) were
 lucky to be chosen while the petitioners were luckleSs and .lost. Peti-
 tioner No. 2 represented against the propriety of the selection to the
 executive council, but the latter overruled the abjeGtion                      c
 and accepted the recommendation. Respondents 5 to 10 were thus
  appointed Readers. The Petitioners thereupon moved the chaneellor
  uader s.42 of the Act and urged, in their petition, that the selection was
 illegal, but were disappointed because the chancellor, by this order of
  November 22, 1973, upheld the selection and the appointments.
  The last refuge of those with lost causes is the writ jurisdiction of the     D
  High Court. The petititoners invoked Art. 226 of the1 Constitution
  and impugned the legality of the selection process and the appointments
  on various grounds.The learned single Judge considered the merits of
  the contentions and concluded that the selections and the consequent
   appointments were bad in law except in regard to respondents 7 and
  JO and directed the university, in January 1976, to hold fresh selections     E
  for filling the vacancies of long years ago.
      Inevitably, the vanquished respondents rushed to the appellate
  Bench of the High Court where success greeted them; for, the appeals
  were allowed in reversal of the sini:le Judge's reasoning and the writ
  petition was dismissed in entirety. The final sanctuary of those who          F
  fancy that they are victims of judicial injustiee of other forms of ini-
   quity is the Supreme Court in its misleadh1gly immense and Self
  defeatingly multiform jurisdiction under Art. 136, The appellants are
   here hopefully invoking our power to heal their alleged injury.
      With this backdrop, it will be easy to appreciate the few submissions
                                                                                    G
  urged by the appellants in substantiation of their case that although the
  selection committee was legally constituted, the process of selection
  and the criteria for selection were illegal. If the selecion were uinvali-
  dated by any lethal vi.Ce the '.council's action in accepting the com-
  mendees cannot survive. Nor can the· chancellor's dismissal of the
  objections of the appellants lend life to what otherwise is non est. Thull,       H
  the crucial issue is whether the grounds of attack levelled against the
   selection have substance.
           908                 SUPREME COUJl.f REPORTS          [1980] 3 S.C.R.

    A       A few basic facts must be remembered before we discuss tbe merits.
        All tbe parties with whom we are concerned as candidates, have acquired
        their master's degree from tbe Allahabad University. In tune with tbe
        hierarchical ethos of Indian society which does not spare tbe academia,
        tbere is a pyramidal structure with lecturers at tbe bottom, Readers
       above tbem aud professors at the top, speaking simplistically. Our
  B    concern in this appeal is with Readers; and tbe eligibility qualifications
       mentioned in Ordinance 9 are tbe minimum, not tbe maximum. We
       may straight get into the meat of tbe matter. The [substantial con-
       tention urged by tbe appellant with success before tbe single Judge and
       failure before tbe Division Benchjis tha(tbe contesting respondents are
    c  not even qualified for consideration because they do not have a first
       class or a high second class in tbeMaster's degree. It is common ground
      that none of them has a first class. It is undisputed that the Allaha-
      bad Universicy awards first class to those who obtain 60 %and above
      and second class to those who secure anything between 48 %to 59 %.
      For the nonce, we are not concerned with the other qualifications
 D    itemised   in Ordinance 9. The marks obtained by the appellants show
      that they are recipients of first class or high second class. The contro-
      versy is not about their eligibility but that of the contesting respondents.
      Dr. Mrs. Joshi (R. 5) has secured 52 •2 mar ks; Shri Saxena (R. 6)
     has scraped through with 49 ·3 marks; Dr. Dutt (R. 7) has, however,
     obtained a first class while Shri Agarwal (RS) is slightly below the
 E   middle line in the second class range having got only 53 ·8, marks;
     Dr. Bhattacharya (R9.) 'has fared a little better with 54 ·5 marks. Dr. ·
     Upadhyaya (R. 10) also has a better performance record in the
     Master's degree examination since he has 55 ·l marks to his credit.
     From these figures it is obvious that Dr. Dutt (R.7) has the :rustitien
     of being the holder of a first class. It is beyond one's comprehension
F    how his selection can be challenged on the score of ineligibility.
    Indeed, the appellants have accepted the findings of the learned single ~
    Judge who has disallowed the writ petition vis-a-vis R. 7 and R. 10.           , ,.
    We agree. Even in regard to the conclusion arrived at so far as R.
    10, Dr. Upadhyaya, is concerned who has secured marks above the
    middle line in the range between 48 %and 59 %, we are not disposed to
G · disagree with the single Judge. Thus, the appointments of R. 7 and R.10
    do not call for any interference. The rest will, right now, be
    exposed to the actinic light oflegal scrutiny.

             We may dispel two mystiques before we debate the real issues.
B       Did the selection       committee act illegally in resorting to the
        interview process to pi ck outthe best ? We think not. Any adminis-
        trative or quasi-judicial body clothed with powers and left unfettered
J. P. KULSH'RESHTHA v. ALLAHABAD UNIVERSITY (Krishna l~r, 1.) 909

 by procedures is free to devise its own pragmatic, fieXible and functional·      A
 ly viable processes of transacting business subject, of course to the
 basics of natural justice fairplay in action, reasonableness in collecting
 decisional materials, avoidance of arbitrariness and extraneous consi-
 derations and otherwise keeping with in the leading strings of the law.
 We find no flaw in the methodology of 'interviews.'Certainaly, cases
  arise where the art of interviewing candidates deteriorates from                B
  strategy to strategem and undetectable manipulation of results is
  achieved by remote control tactics masked as viva v9ce tests. This,
  if allowed; is surely a sabotage of the purity of proceedings, a subter-
  fuge whereby legal means to reach illegal ends is achieved. So it is
   that courts insist, as the learned single Judge has, in this very case,
  ~uggested on recording of marks at interviews and other fair checks
                                                                                  c
 'like guidelines for marks and remarks about candidates and the like.
   If the court is skeptical, the record of the Selection proceedings, includ-
   ing the notes regarding the interviews, may have to be made available.
   Interviews, as such, ll're not bad but polluting it to attain illegitimate
  .ends is bad. Dr. Martin Luther King Jr. was right when be wrote{')
                                                                                  D
        "So I have tried to make it clear that it is wrong to use immoral
        means to attain moral ends. But now I must affirm that it
        is just as wrong, or even more, to use moral means to
        preserye immoral ends."

       The second obscurantism we must remove is the blind veueration             E
  .of marks at examination as the main measure of merit. Social
  scientists and educational avant garde may find pitfalls in our system
   of education and condemn the unscientific aspects of marks as the
   measure of merit, things as they now stand. But, however imperfect
   and obtuse the current system and however urgent the modernisation of
  -0ur courses culminating in examinations may be, the fact remains that          I'
  the court has to go by what is extent and cannot explore on its .own or
   ignore the measure of merit adopted by universities. Judges must
   not rush in where even educationists fear to tread. So, we see no
   purpose in belittling the criterion of marks and class the
    Allahabad University has laid down, although to swear religiously by
    class and grade may be exaggerated reverence and false scales if                  G
    strictly scrutinised by progressive criteria.
      We have stated earlier that the prescription of first class or high
   second class is part of the Ordinance as a qualification for a Reader's
   post. Is this condition mandatory or directory ? The High Court
   at the two tiers has taken contrary views. But we are inclined to                  H
      (I) The Negro is your Brother by Martin Luther King Jr. published in "119
         years of the Atlantic" ed. by Louise Desaulniers, p. 515.
         910                   SUPREME COURT REPORTS               (1980] 3 S.C.R.

    A               a
           hold that high second class is a mandatory minimum. A glance at
          the relevant portion of Ordinance 9 reveals that wherever relaxation of
          qualifications is intended, the Ordinance specifically spells it out and by
        , necessary implication, where it has not said so, the possession of such
          qualification is imperative. · We must remember that a Reader is
          but next to a Professor and holds high responsibility in giving academie
    B     guidance to post-graduate students. He has to be a creative scholar
          himself capable of stimulating in his students a spirit of enquiry and
          challenge, intellectual· ferment and thirst for research. If the teacher
          is innocent of academic excellence, the student, in tum, will be passive,
          mechanical, negative and memorising where he should be innovative,
          imaginative and inventive. The inference is irresistible that a Reader
          who guides the students. and raises his faculties into creative heights is
          one who himself has had attainments to his credit. Putting aside for
          a moment the value of examinations and marks as indicators of the
          student's potential, we must agree that the ordinance has a purpose
          when it prescribes atleast a high second class for a Reader's post.
         It · is obligatory.
    D
             Now we come to close grips with the principal point debated before
         us. When is a second class high, going by marks? For any layman
         the meaning is clear. For any purpose-oriented interpretation the
         decoding is simple. High is the antithesis of low and a high second
         class is, therefore, a contrast to a low second class. When the range
    E    of second class marks is wide, of the candidate who gets that class with
         marks within the lower half bracket you cauuot say he gets a high
         second class. If he manages to get 48 marks he barely gets a second
         class-not a high second class. And commonsense which is not an
         enemy of · court sense, points clearly to the meaning of .high seconcf
         clas!l as one where the marks fall a little short offirst class marks and
    F
         he narrowly misses first class. In the context of Ordinance 9 and its          .   '

         purpose and the collocution of words used viz. 'first class or a high
         second class', the interpretation will misfire if we disregard the intent
        and effect of the adjective 'high' and indifferently read it to mean
        merely the minimum marks needed to bring the candidate within the
    G   second class.· High is high and a superior second class denotes marks
        some where near first class marks. Assuming we relax, dilute and
        liberalise the rigour clearly imported by the draftsman by using the
        expression 'high second class', still it is impermissible to render the word
        'high' nugatory or make, by construction, that intensive adjective
        redundant. Nor are we impressed with theJstrange submission that the
        University has all these years treated a high second class to mean a mere
        second class, and, therefore English has lost its potency in the
        Allahabad University and high includes low. Such bathetic semantics.



•
      J. P. KULSHRESHTHA v. ALLAHABAD UNIVERSITY (Krishna Iyer,!.) 911

        must be rejected since continuing ccmmission cf w1crg does not             A
       right it.

            The utmost we may reluctantly accept is the construction that the
        learned single Judge has adopted. Draw a line at mid-point, and
       marks above and below that line wiJI be high and low second class
       respectively.                                                               B

            It was urged that marks for the second-class grade vary frcm uni-
        versity to ~university and start sometimes with 40 %and so, even 4~
        must be regarded as high second class for Allahabad University.-Here
r--· · we are e.ncerned only with holdrrs lilf second class from the Allahabad
        Unive111ity and so the complication of other universities does not rise.   c
        Even &therwise, with reference to any particular university, the marks
       for second class may be from X to Y and 'high' with reference to that
       university will be the superior half between X and Y. Lexically, logi-
       cally, legally, teleologically, we find the conclusion the same. We
       regretfully but respectfully disagree with the Division Bench and
                                                                                   D
       uphold the sense of high second class attributed by the learned single
       Judge. The midline takes us to 54 and although it is unpalatable to
       be mechanical and mathematical, we have to hold that those iwho
       have not secured above 54 marks cannot claim to have obtained a
       high second class and are ineligible. In the instant case, Dr. Mrs.
       Joshi, Shri Saxena and Shri Agarwal do not fill the biJI, their marks       E
        being below 54 in the Master's degree examination. We have
       earlier held that the power to relax, as the Ordii;iance now runs,'hilso
       far as high second class is concerned, does not exist. Inevitably, the
       appointment of the 3 respondents violate the Ordinance and are
       therefore, illegal. It is true, as counsel for the respondent urged, that
  · ~he Selection Committee is an expert body. But their expertise is not          F
    '· in laV1, but in other branches oflearning and the:final interpretation of
       an ordinance is a legal skiJI outside the academic orbit.

          Rulings of this Court were cited before us to hammer home the
      point that the Court should not substitute its judgment for that of
                                                                                   G
      academicians when the dispute relates to educational affairs. While
      there is no absolqte ban, it is a rule of prudence that courts should
y     hesitate to dislodge decisions of academic bodies. But university
      organs, for that matter any authority in our system, is bound by the
      rule of law and cannot be a law unto itself. If the Chancellor or any
      other authority lesser in level decides an academic matter or an edu-        H
      cational question, the Court keeps its hands off; but where a provision
      oflaw has to be read and understood, it is not fair to keep the Court
    912                   SUPREME COURT REPORTS            [1980] 3 S.C.R.

A   out. In Govinda Rao's case (I) Gajendragadkar, J (as he then was)
    struck the right note:
            "What the High Court should have considered is whether the
            appointment made by the Chancellor had contravened any
            statutory or binding rule or ordinance, and in doing so, the
            High Court should have shown due regard to the opinions
B
            expressed by the Board and its recommendations on wbieh
            the Chancellor has acted."
                                                        (Emphasis added)
    The later decisions cited before us broadly conform to the rule of
c   caution sounded· in Govinda Rao. But to respect an authority is
    not to worship it unquestioningly sinee the bhakti cult is inept in the
    critical field of law. In short, wfille dealing with legal affairs which
    have an impact on academic bodies, the views of educational experts
    are entitled to great consideration but not to· exclusive wisdom.
    Moreover, the present case is so simple that profound doctrines about
D   academic autonomy have no plaee here.
        A strange submission was mildly made that the Executive Council
    has also the power to make ordinanees and so, by aceepting a low
    second class has equal to a High second class in the case of the three
    respondents, the Council must be deemed to have amended the Ordi-
    nanee and implicitly re-written it to delete the adjective 'high' before ~-
    'second class'. This argument means that an illegal act must be
    deemed to be legal by reading a legislative function inio an eXeCUtive
    action. We(e this dubious doctrine applied to governmental affairs
    and confusion between executive and legislative functions jurispru-
    dentially sanctioned, the consequences could well be disastrous to
F   the basics of our democracy. We mention this facet of the argument"'.
    not only to reject it but to emphasise that small gain in some case -'l
    should not justify the urging of propositions which are subversive of    '
    our Constitution Be that as it may, We are satisfied that respon-
    dents 5, 6 and 8 do not possess a high second class in their Master's      if
     degree.
G
        The second condition suceessfully urged before the single Jud11e of
     the High Court relates to Dr. Bhattacharya (R. 9). The point is
    that R. 9 and petitioner No. 2 for selection the second petitioner
    Jost h~s chance of being consi~red because he did not appear fOt' the
    interview and Dr. Bhattachafya averted that fate because he was
H   sent for a second time. The equivocal version of Dr. Bltattacharya
       (1) The University of Mysor1;, and Anr. v. C.D. Govinda Rao   an6 .Anr.
          [1964] 4 S.C.R. 575 at 586.
    .J.P. KULSHllESHTHA v. ALLAHABAD UNIVERSITY (Krishna Iyer, 1.) 913


      has not been accepted by the learned single Judge ai1f1 we are nnhappy      A
     that an academic has been pnt to the necessity of this dubiety which
     suggests that taking liberties with truth for getting a temporary advan-
      tage is a tendency which does not spare highly educated and gifted
      persons. In this connection, even the terminological inexactitude
     ind~lged iu by Dr. Hem Lata Joshi (R. 5) is not complimentary,
     when she says that in her application she gave 54 marks as against           B
     the actual figure of 52 ·2 and when challenged, she excused herself
      by saying that her memory, working in a hurry, let her down. We are
     satisfied that if the Selection Committee had chosen to give an oppor-
     tunity to the 2nd petitioner, even as they did to R. 9, he might well
     have turned up and having regard to his high marks, might also have
     stood a good chance of being selected. The criticism is not that the
                                                                                  c
     Selection Committee's action was mala-fide or biassed, but that there
     has been unequal treatment between equals. For this reason, th;;'
      selection of R. 9 deServes to be struck down as violative of Art. 14.

         Other minor points which have been urged and countered do not
                                                                                  D
      deierve serious consideration and we decline to deal with them. The
     .conclusion we reach is that the selection and appointments of respon-
      dents 7 and 10 are good; but the selection and appointment of respon-
      dents 5, 6, 8 and 9 are bad in law.

          The tragic sequel cannot be dismissed as none of our coneern
     because the Court, by its process, must, as far as possible, act construc-   E
     tively, minimising the injury and maximising the benefit. Indifferenee
     to consequences upon institutions and individuals has an imperial
     flavour and we wish to make it clear that the fact that since 1973 the



-
      respondents 5, 6, 8 and 9 have been functioning as Readers without
      blemish is a factor which distresses us when we demolish their appoint-
                                                                                  F
      ments. They have gained experience of several years in the Reader's
(     post. They are otherwise well qualified on the academic side. The
      short-fall in the matter of a high second class, while some of them have
      Deen doctorates, should not have such disastrous consequences as t"
      throw out the appointees 7 years after. We think that these special
     .circumstances may well justify the appropriate authority in the Uni-        G
      versity resorting to alternatives which may mitigate their misfortune.
      We have been informed by counsel Mr. Manoj Swamp that the
       University is inclined to take an accommodative attitude to mitigate
      the hardship that may flow from the adjudication. Of course, they are
      free to take such steps as they deem just and necessary. We do not
      think there was anything wrong in Dr. Bhattacharya having been              .e
      jpersuaded to come to the interview, but we regard it as improper that
      1!uch a facility was not extended to the 2nd petitioner.
    914                   SUPREME COURT REPORTS             [1980] 3 S.C.R.

A       In conclusion, we allow the appeal and direct a fresh selection from
    among those candidates who are qualified for Readership in the light
    of our interpretation of Ordinanee 9. We make it clear that the appoint-
    ments of respondents 7 and 10 sustained by the High Coart, will
    remain untouched.
B      The appeal is allowed subject ·lo the observations made above.


    S.R.                                                   Appeal allowed.